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Tuesday, 27 June 2017

Last week, the United States Patent and Trademark Office notified the withdrawal, by express abandonment, of Gene Simmons's trade mark application for the hand gesture known as the devil's horns. This application for the registration of the hand gesture was keenly followed by this Kat who relishes reading positions and opinions of intellectual property offices or courts on unusual marks.

Spock and cat unimpressed at Barack's diluting use of 'their' sign.

The applicationsought to register a gesture-based sign described as "a hand gesture with the index and small fingers extended upwards and the thumb extended perpendicular" in relation to the international class 41. This class covers "services having the basic aim of the entertainment, amusement or recreation of people" and the "presentation of works of visual art or literature to the public for cultural or educational purposes". The application had further specified the types of services targeted by the application as "entertainment, namely, live performances by a musical artist; personal appearances by a musical artist".

An earlier post dedicated to Simmons's trade mark application reported on a number of uses of the so-called devil's horn (also known as 'I love you' in sign language) recorded prior to Simmons's alleged first performance of the hand gesture. These examples of prior use depicted a rather bleak picture of Simmons's chances to secure trade mark protection in relation to the sign. Indeed, it seemed very likely that the US Patent and Trade Mark Office would have rejected the application for lack of distinctive character. Nevertheless, a positioning of the US governmental body on the registrability of a hand gesture in principle would have been most interesting. Indeed, one could think of other hand gestures enjoying greater distinctive character (inherent or acquired) which may, one day, find their way to the US Patent and Trademark Office's desk. We will have to wait for another application to see whether the boundaries of trade mark law can be pushed a step further by adding hand gestures to the category of unusual marks, next to smells, colors or sounds.

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